Andrew Sloane on why we shouldn’t call abortion ‘murder’

When ethicist Andrew Sloane’s ‘At Home in a Strange Land’ discusses the sixth commandment ‘do not murder’, he argues that abortion ought not to be considered murder. I hadn’t heard this argument before; at the very least it once again calls Christians away from emotive labels and towards nuance in what is already a very heated debate.

We must recognise that [the sixth commandment] is a prohibition of murder, not just of killing (the Hebrew word has roughly the same meaning as our English word and is generally used in contexts that speak of ‘malice aforethought‘). It does not prohibit warfare or the death penalty, nor does it prohibit what we call ‘manslaughter’ — causing the death of another person by accident or neglect…

This is not to say however that we have automatic answers to a range of puzzling questions relating to the beginning and end of life. For instance, I have often heard Christians opposed to the practice of abortion or euthanasia talk about them as instances of murder. I think not. Don’t get me wrong: abortion and (so-called active) euthanasia are generally wrong, in part because they are claiming the kind of sovereignty over human life and its beginning and end that properly belongs to God alone. But these actions are not murder. Euthanasia doesn’t count as murder, because it is not a killing with malice aforethought but rather is done out of misguided compassion. Abortion doesn’t count as murder, because neither those who perform it nor those who choose to go through the procedure believe that what they are killing is a human person. They may be wrong about that, although the wrongness in general of abortion doesn’t depend on saying that an embryo counts as a full-fledged human being from conception. But given that they do not count the fetus as a human person, their intention is not to kill a human being, with or without malice thus although what they do is, in general, wrong, it does not count as murder. Furthermore, there are instances — say, where the mother’s life is at risk — when abortion, while deeply regrettable, may not be wrong…. Given that in the OT and modern law malice aforethought consciously directed against another human being so as to will their death (or serious harm) is a key criterion for identifying a particular wrongful death as murder, the absence of malice aforethought makes abortion and euthanasia, generally speaking, wrongful death rather than murder.

Tamie Davis

Tamie, aren’t all ideological arguments, if held seriously, emotive? Additionally I’m not convinced Andrew Salone’s argument here is any more or less nuanced than the alternatives, how would we measure that anyway!

Andrew’s argument reminds me of the clumsy sliding scale of human value that the Anglican Diocese of Melbourne employed a few years ago in order to support the conclusion that abortion in some. and especially early in development. was morally permissible. (2007, Submission to the Victorian Law Commission)

Essentially Andrew is saying if the perpetrator doesn’t think the victim is a human person then it’s not murder. “Abortion doesn’t count as murder, because neither those who perform it nor those who choose to go through the procedure believe that what they are killing is a human person” Existentially it’s repugnant but logically his argument is invalid because he makes the clarity of his terms “human person” dependent on validity of his conclusion “they don’t believe it’s murder. That sort of faulty reasoning makes me wonder about the rest of the work.

It’s an interesting idea, Tamie, but I’m not convinced. I don’t want to get into the discussion on abortion per se, but the logic of this particular argument is incoherent.

Let’s make a dangerous, offensive, and clearly flawed comparison, and suppose we applied the same reasoning to killing others, on the grounds that we consider them less than human? This type of argument has been applied to the disabled, the Jews, non-whites, etc… (Godwin’s law notwithstanding) The agent’s belief in the humanity of the victim (not the best word, but I can’t think of a better one) is therefore not decisive – while the agent may not consider their actions murder, this is not enough to stop everyone else denouncing them in such terms.

To clarify: I think the problem is that you need some idea of whether the belief in the humanity/inhumanity of the victim is a reasonable belief. This of course means we’re right back to the same old argument when it comes to abortion, and the proposal doesn’t really achieve much.

Hi Sam. When Tamie first read this quote out to me, I didn’t think the point was so much about personhood as about ‘malice aforethought’, the point being that abortion and murder are two different things (which is not to say that one is less weighty than the other). Abortion can obviously be wrongful death and all too often is, but that does not make it murder. But you don’t think Andrew’s explanation isn’t up to snuff — so I wonder if there is a better way of explaining the distinction, if it is worth keeping?

To begin with, I just want to point out that I know that what I’m about to say is, shall we say, clinical, and doesn’t adequately deal with any emotional issues involved. This is why I didn’t want to try and address the sensitive issue of abortion directly, instead looking only at the broad principles of the argument.

I suppose my issue with his definition was that it just didn’t pan out for me – clearly malice (or at least, intent) is a necessary part of murder. But destructive intent is present in abortion (as it is in removing a tumor, killing in war, etc.) and it isn’t enough to simply argue that you were of the opinion that someone should not be considered human. If I convince myself (in a misguided but sane way) that members of group X are subhuman and dangerous, and hence go out to kill, then I am still guilty of murder. For this reason, we need to be able to hold a person’s belief up to some sort of external standard.

I also don’t think malice is sufficient as a distinguishing factor, as if I kill a shop assistant while robbing a store, it remains murder, even if I wished no particular ill to the individual and just wanted the contents of the till.

There is of course a difference between murder and, for example, accidental killing (eg I thought my hunting buddy was a deer) and insanity-type pleas are relevant, but the difference (as far as I see it, not being a legal theorist) is that in both these cases the belief that the target is not human is, in some sense, reasonable.

In terms of better ways of explaining the distinction, perhaps there is some sort of principle of double effect argument? – in both cases the primary motivation is compassionate, even though it involves a loss of life. I can’t say I’ve ever been that convinced by the generality of the argument, even though it’s clearly fairly strong in cases where the mother’s health is at risk, or when discussing palliative care.

For euthanasia I think you can make a good case against using the term murder, on the general principle that you can’t murder yourself. Also, working from the premise that God has given us particular responsibility for the care of our own lives, suicide is an overreach of this authority, rather than an imposition on the authority God has delegated to another. I’d be wary about applying this argument to abortion though, as I can’t see how to distinguish cleanly between abortion and infanticide in this context, and am unwilling to remove the label ‘murder’ in the latter case. Perhaps something can be made of the fact that there is the possibility of transferring parental responsibility for a baby to another person, while such an option is not available prenatally? Perhaps such an argument also helps to explain why there is a difference between early-gestation and late-gestation abortion?

I’m with you in your thinking, Sam. If only one of us knew how malice aforethought actually functions in law! So, are you saying that in some instances, some kinds of abortion could be considered ethical killing? But even then, I don’t think this can be applied wholesale to “abortion” because it’s a multifarious thing. The morning after pill clearly has a destructive goal, but this is not necessarily a killing, and there are reasons that can be advanced for this — there is an argument that (if I remember rightly) in the morula stage there is not a single entity present because what is present is a still-differentiated conglomeration of cells. That’s not to legitimise the use of the morning after pill but to say that there are differences between abortion and infanticide/murder — even if those differences are only clear at the very beginning and very end. I wonder where Megan Best would take us in Fearfully and Wonderfully Made? I haven’t read it yet.

I don’t think I’m going as afar as saying that abortion can be ethical, except possibly in cases where, for example, the mother’s life is at risk. In this case, a double effect argument seems valid to me (the main purpose of the act is saving a life, and the act of killing is secondary). I agree completely that abortion (and euthanasia) are multifarious things, and broad principles can only get us so far.

I suppose I’m saying that murder differs from suicide due to the principle that God has given us a high level of authority over our own lives. This authority is bounded, and cannot be renounced, so suicide is an evil act. Nevertheless, there is a difference between an action I take regarding myself and regarding another. If I attempt suicide, that is principally between me and God, whereas murder involves another party in a fundamental way.

My final thought was that perhaps a similar argument can then be applied to abortion, as a mother is given a particular responsibility for a foetus (who does not have authority over/responsibility for their own life at this stage) and so abortion should be thought of as exceeding the authority given, rather than imposing on the authority of another.

Unlike for an infant (who still has only limited responsibility for their own life) there is no possibility to renounce the responsibility for care without the death of the foetus, which is why infanticide is still murder (of a type) even though a parent has authority over/responsibility for the care of children. This logic also allows us to roughly differentiate between early and late gestational terminations, as at a late stage, one is closer to the opportunity of transferring responsibility.

One thing I like about this way of thinking is that it avoids completely any discussion of rights (either of the mother or the foetus), which I often find problematic, and rather attempts to frame everything in terms of our responsibilities and delegated authorities, which seem to me to have better theological bases.

I’m not sure whether the argument you mention about the morning after pill is of the same type though – it is basically arguing against the humanity of the embryo, which is a lot closer to the classical line of debate, which seems to me to have reached an impasse.